Opinion
No. 36154.
Filed September 2, 1966.
1. Divorce. There is no general rule as to the degree of corroboration required in a divorce action. The determination as to the sufficiency of the corroboration in each case is made upon the facts and circumstances in that case. 2. ___. Ordinarily acts of personal violence by a husband toward his wife are not justified by conduct on the part of the wife that does not threaten bodily harm. 3. Trial. Where the evidence is irreconcilable and in direct conflict, this court will consider that the trial court had the opportunity of observing the witnesses and their manner of testifying and must have accepted one version of the facts rather than the other.
Appeal from the separate juvenile court of Lancaster County: W. W. NUERNBERGER, Judge. Affirmed.
Johnston Grossman and Miles W. Johnston, Jr., for appellant.
Rollin R. Bailey, Davis, Thone, Bailey, Polsky Hansen, for appellee.
Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and KUNS, District Judge.
Clara Humann, plaintiff and appellee, instituted this divorce action in the district court for Lancaster County, Nebraska. The case was transferred to the separate juvenile court of Lancaster County where Frederick O. Humann, defendant and appellant, filed his answer and cross-petition. After trial, the court found for the plaintiff upon the ground of extreme cruelty. Plaintiff was granted an absolute divorce. General custody of all the children was placed in the chief juvenile probation officer of the court. Physical custody of and support allowances for the three youngest children were granted to plaintiff. Physical custody of the two oldest children was granted to defendant. Defendant has appealed.
The record shows that the parties were married in October 1949, and had lived in Lincoln, Nebraska, continuously since that time. Five children were born to them between 1950 and 1958. Defendant held a permanent job as a painter and also did outside work at various times. Plaintiff also had worked during most of their married life. The family had always been hard pressed financially, with consequent arguments and other disputes directly or indirectly related to finances. Plaintiff testified to conduct and various actions which she contended were cruel. However, the record reflects only two specific incidents which should be considered as the basis for the general finding of extreme cruelty. The first incident occurred in September 1964, while defendant was being treated in a hospital. The finding of extreme cruelty is not supported by sufficient evidence, however, as to this incident.
The second incident occurred in the home on February 7, 1965, and as to this incident, the critical question is the sufficiency of the corroborative testimony. The testimony of the plaintiff and defendant was in direct conflict. The plaintiff testified that the defendant grabbed her arms, struggled with her, and shoved her against the furniture and down to the floor; and that he tore her blouse, knocked a cup of coffee out of her hand and spilled it over her blouse, and tried to shove her down the back step. The defendant's version was that the plaintiff had a cup of coffee in her hand; that he placed his hands on her shoulders trying to talk with her; that she turned around and whirled; that his finger got caught in her blouse, which tore it; and that when she whirled, she kicked at him and spilled the coffee. He accounts for the bruises on her arms by suggesting that she must have hit her arm on the doorcasing when she was swinging at him. He denies that he grabbed her or did anything to cause any bruises.
Mrs. Marianne Rush testified that on February 8, 1965, she saw the plaintiff in the store and noticed her arm was black and blue and skinned. She was told by the plaintiff that the defendant had done it. Dr. E. T. Hobbs testified that the plaintiff consulted him on February 9, 1965, at his office; that she had bruises on her shoulders, upper arms, and both knees; that there were four spots on her upper arm that were darker than the remainder of the bruised area; that these were on both arms; and that they would correspond to a finger or thumb pretty well. The history given to the doctor was that her husband had manhandled her and given her these bruises. Plaintiff and defendant each denied the other's version of the occurrence. No other persons were present and there was no testimony from others concerning the sounds of an altercation or the events at or immediately after the time of the occurrence.
The defendant asserts that the evidence is insufficient independent corroborative evidence under the provisions of section 42-335, R.R.S. 1943. That section provides: "No decree of divorce and of the nullity of a marriage shall be made solely on the declaration, confessions or admissions of the parties, but the court shall, in all cases, require other satisfactory evidence of the facts alleged in the petition for that purpose."
There is no general rule as to the degree of corroboration required in a divorce action. The determination as to the sufficiency of the corroboration in each case is made upon the facts and circumstances in that case. Ordinarily acts of personal violence by a husband toward his wife are not justified by conduct on the part of the wife that does not threaten bodily harm. Clark v. Clark, 178 Neb. 796, 135 N.W.2d 481.
The case of Kidder v. Kidder, 159 Neb. 666, 68 N.W.2d 279, appears determinative on the issue of corroboration. In that case, the plaintiff had testified that the defendant had struck her and raised a large lump on the side of her face, and that it became discolored. The defendant's version was that the plaintiff had threatened to strike him with a hammer, whereupon he fell against her, and she fell out of a jeep and in some manner received the injury. There were no witnesses to the incident, but three witnesses saw the lump on the day the blow was inflicted and were told by the plaintiff that the lump resulted from striking by the defendant. This court held that this evidence was sufficient corroboration under the facts in that case.
In the case before us, the evidence of two witnesses tends to corroborate the plaintiff's version of the incident rather than the defendant's version. In some aspects of the facts, the determination of the issue of sufficiency of the evidence might well be said to be close. Under these circumstances, where the evidence is irreconcilable and in direct conflict, this court will consider that the trial court had the opportunity of observing the witnesses and their manner of testifying and must have accepted one version of the facts rather than the other. See Ivins v. Ivins, 171 Neb. 838, 108 N.W.2d 99. Under the facts in this case, the corroboration was sufficient and the finding and determination of the separate juvenile court was correct.
The defendant contends that his evidence was sufficient to entitle him to a finding of extreme cruelty on the part of the plaintiff. In view of his testimony that he did not wish a divorce, but rather to be reconciled, it is not surprising that his evidence was weak. As to a complaint about the association of the plaintiff with another man, there was no evidence of misconduct upon her part. As to a complaint that plaintiff had threatened defendant with a knife, the evidence and corroboration was insufficient to show the making of such a threat, or if made, that it amounted to extreme cruelty. The trial court found correctly that there was insufficient evidence to support defendant's allegations in his cross-petition.
The defendant also assigns error in the division of custody of the children between the plaintiff and the defendant. At the trial, the two oldest children indicated that they wished to live with their father. The three youngest children did not testify, presumably because they had not attained the age and ability to express an intelligent preference as to custody. General custody of all the children was placed with the chief juvenile probation officer of the court, with directions to place the physical custody of the three youngest children with the plaintiff and of the two oldest with the defendant.
Section 42-311, R.R.S. 1943, provides in part: "Upon * * * decreeing a divorce, * * * the court * * * may determine with which of the parents the children or any of them shall remain." The defendant contends that it is contrary to public policy to divide custody of children between parents and thus separate the children. This is not the law. Waldbaum v. Waldbaum, 171 Neb. 625, 107 N.W.2d 407. The record does not show any abuse of discretion by the trial court in making provision for the custody of the children and for the future maintenance of the children in plaintiff's custody.
For the reasons stated, the judgment of the separate juvenile court is affirmed. The plaintiff is allowed $250 for the services of her attorney in this court.
AFFIRMED.